Diane speaks with Dr. Roger Kligler who is living with advanced stage cancer on why he's suing the state of Massachusetts for the 'Right to Die' and with Dr Jessica Vitter, and intensive care and palliative care specialist on why better communication is so needed between doctors and patients facing end-of-life issues.
A new poll shows 86 percent of Americans believe the Constitution is important to their daily lives. But less than one third have read it. Diane and her guests discuss how this document came about, the compromises that enabled it to pass and what it means for us today.
- Sean O'Brien executive director, Center for the Constitution at James Madison's Montpelier
- Michael Quinn president and executive director of The Montpelier Foundation.
- Stuart Taylor contributing editor, Newsweek and National Journal
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The U.S. Constitution begins, we the people, but 223 years later, more than half the Americans responding to a nationwide survey said, governmental authority came from elected officials rather than the people. Only one-third said they've read the Constitution since getting out of school. Joining us to talk about what Americans know, what the founding fathers intended and why it matters today, Michael Quinn of The Montpelier Foundation, Sean O'Brien of the Center for the Constitution at James Madison's Montpelier and Stuart Taylor of Newsweek and National Journal. I'll be interested to hear your thoughts on the Constitution, why was it written, what it intended and your thoughts about it today, so give us a call, 800-433-8850. Send us your e-mail to email@example.com. Feel us free to join us on Facebook or send us a tweet. Good morning, gentlemen.
MR. MICHAEL QUINNGood morning Diane.
MR. SEAN O'BRIENGood morning.
MR. STUART TAYLORGood morning.
REHMThanks for being here. Sean, I wonder if you'd start and tell us a little about this survey.
O'BRIENWell, we conducted the survey at the Center for the Constitution at Montpelier to get a better sense for exactly what the survey is called, What Do Americans Know About the Constitution. And we wanted to know that because the Center for the Constitution is dedicated to increasing people's knowledge and understanding of the Constitution, so we wanted to know what challenges we were facing. And so we untook -- unshook this nationwide survey to get at that question.
REHMHow many people?
O'BRIENWe surveyed 988 people across the country.
REHMAcross the country.
O'BRIENTelephone survey, we worked with Quinton Kidd at Christopher Newport University to develop the survey instrument and then the Public Opinion Institute at Muhlenberg College in Pennsylvania to do the actual calling.
REHMHow happy were people to talk with you?
O'BRIEN(laugh) I think fairly typical response rate from telephone surveys. You get a lot of hang ups because people…
O'BRIEN...don't want to be on the phone.
O'BRIENThe survey took probably 15 minutes to take and so not everyone finished all the way through. We did have 988 successful complete surveys, so we have a margin of error plus or minus 3.1 percent.
REHMSo your conclusions, less than one-third have taken the time to read all or even most of the Constitution.
O'BRIENRight. And that's the result that sort of jumps off the page at everybody because the Constitution defines us as a people, it defines us as a nation. And how can you really feel a part of our nation if you haven't read the Constitution? The Constitution, the body of it, is 4,400 words. It's about the equivalent of 17 pages in a novel. Most people could sit down and read that in 20 or 30 minutes and it's not that hard to do. And so the fact that 28 percent of the people report having read all of the Constitution is really quite alarming.
REHMGive me a sample of the kinds of questions you asked of the people who did finally respond to you.
O'BRIENSo we asked a mix of questions. Some of them were sort of very factual based, who has the power to make money? Who has the power to develop treaties, regulate interstate commerce? So those are things that come straight out of the Constitution. And on the one hand, it's very encouraging, approximately 90 percent of the people know the correct answer to most of those questions. But it does make you wonder about the 8 percent of the people who said that states make and regulate money, what they were thinking about when they said that, 'cause it doesn't. None of us have West Virginia money, for example, in our pockets. So that's a little bit concerning. We also asked about Constitutional principles, things like separation of powers, separation of church and state, limited government and again, people get this. The ideas in the Constitution, even though people haven't read it, the ideas permeate our society and so people understand these broad principles and they really like them. They think that they're very important.
REHMSean O'Brien, he's executive director of the Center for the Constitution at James Madison's Montpelier. Stuart Taylor, we have a situation today politically, where Tea Party activists claim to be originalists. What does that mean?
TAYLORWell, it usually means, and Robert Bourke popularized it I suppose, that the Constitution should be interpreted according to the original intent of the framers or Justice Scalia would say, according to the original public meaning it had. So for example, the Constitution's original public meaning did not include any idea that abortion would be regulated and therefore an originalist would say abortion is none of the business of the Supreme Court of the courts, however, there are some -- a lot of problems with originalism. One is a lot of interpretations are very vague. There's no -- there was no consensus originally what they meant. There wasn't a consensus between Madison and Hamilton.
TAYLORAnd also, some of them, I think people wouldn't like very much today, even the Tea Party people. For example, there's no provision in the Constitution that was originally intended to prevent the federal government from discriminating on grounds of race. Nobody ever adopted an amendment to do that. The 14th Amendment was adopted to prevent state governments from discriminating on the grounds of race, but nobody ever said that about the federal government. Now that the Supreme Court, I think, properly has interpreted the Constitution as barring racial discrimination by the federal government, but you can't get that from originalism.
REHMStuart Taylor, he's contributing editor to Newsweek and National Journal, a non-resident fellow at the Brookings Institution. He's co-author of the book, "Until Proven Innocent." Michael Quinn, how did the Constitution, as we know it today, come about?
QUINNWell, it really came about because of the crisis in our nation after the revolution. The states were really collaborating under the terms of the Articles of Confederation and Madison was one of the leaders who recognized that this loose treaty among the states did not create a nation and that it was literally on the path to failure. And Madison was called -- ended up becoming -- called the father of the Constitution in his own lifetime. And he was hailed as such because he was really the political strategist that brought about the convention and managed it. He was a -- and he was also the genius whose ideas really contributed the elements that ended up making the Constitutional form or self-government that we adopted in the Constitution that made it work. So on two points, he really was a main motivator, a main genius, behind the Constitution.
REHMThere were tremendous number of issues dividing the founders at that time as they sought to create this document. Who were the formulators, who were the compromisers, who were the ones actually saw it get done?
QUINNWell, one of the -- Madison, again, is the greatest formulator and in his study at Montpelier, he wrote several research papers and put together ideas that were then presented at the Constitutional Convention and immediately called the Virginia plan.
REHMBut he wanted Jefferson to actually write it.
QUINNWell, no, Jefferson actually was in France during this entire period, so Madison understood that he needed to take the lead. And Madison brought great innovative ideas. You know, he was one of the first to realize that a tenant of Republican theory was utterly wrong and that tenant is the majority rule will be the best guardian of individual rights. I don't think Jefferson ever understood the flaw in that thinking. Madison recognized that a majority could oppress a minority, so he understood that it required a much more sophisticated mechanism to really protect individual liberty and at the same time create an effective government.
REHMStuart Taylor, how did the issues that, at that time, divided the founders compare with some of the frustrations that you hear voiced by Tea Partiers today?
TAYLORWell, there were very bitter divisions among the founders and in fact, it was a struggle to get the Constitution adopted. There were a lot of significant founders who opposed adopting the Constitution, Thought that we were gonna have a tyrannical federal government. But just to give you -- and the vitriol (sounds like) back and forth between, right after the Constitution was adopted, saying that in the election of John Adams against Jefferson was bitter. So here's something on which Madison and Alexander Hamilton, the other principal author of the "Federalist Papers," just flat out ended up disagreeing a couple of -- a few years later. The Alien Seditions Acts were adopted by the federalist dominated government of John Adams to...
REHMAnd explain those.
TAYLORThose were basically censorship by punishment of people who criticized the government. So if you criticized the president, you violated the Alien and Seditions Act. Well, Hamilton, who was part of the federalist administration, thought they were fine, perfectly consistent with the Constitution. Madison thought they were in violation of the Constitution, as did Jefferson, so you had pitched battles over the meaning of a central Constitutional issue, first amendment, other provisions right from the start among framers.
REHMAnd the Tea Partiers today?
TAYLORWell, I think the Tea Partiers today have a healthy regard for getting back to first principles and understanding the Constitution. I think that some of them may underestimate the difficulty of reaching any consensus as to what the Constitution originally meant, let alone what it means in the very different world we have now.
REHMStuart Taylor is contributing editor at Newsweek and National Journal, co-author of, "Until Proven Innocent."
REHMWelcome back. We're talking about the Constitution, its beginnings, its intentions, the intentions of the founders, of the writers, how they all came together, finally, to create a document that still has power today. However, there is clearly a lack of understanding in the population that exists today as to not only some of its provisions, but how, in fact, it does regulate the ongoing work of the federal government. Here in the studio with me, Michael Quinn, he's president of The Montpelier Foundation. Montpelier is, of course, the home of James Madison, one of the founding writers and movers and shakers who created the Constitution. Sean O'Brien is executive director at the Center for the Constitution at James Madison's Montpelier and Stuart Taylor is contributing editor at Newsweek and the National Journal.
REHMWe're going to open the phones shortly. I know many of you would like to join us and we'll get to your questions as quickly as possible. Why September 17 as Constitutional Day, Michael Quinn?
QUINNWell, September 17 was the final day of the Constitutional Convention. Madison, Washington, Ben Franklin, other leaders from 12 of the colonies joined together in Philadelphia and they really engaged in an extralegal exercise. Although they were directed to look at amendments to the Articles of Confederation, Madison proposed at the beginning that they throw them out and instead write a whole new charter of government. Everyone agreed and from that point on, they really were moving into new territory. On the 17 of September, five months -- after five months of discussion, debate, compromise, they signed the Constitution. This did not make it the law of the land. All it did was signify to the American people that the charter they had written was their collective wisdom to create a nation that would preserve individual liberty and unite all Americans as a single people.
REHMSean, what about the Bill of Rights? Tell us about that.
O'BRIENIn -- just in general? The Bill of Rights is actually a very fascinating story because it wasn't part of the original constitution. And the constitution that was ratified by the people did not include a Bill of Rights. What happened was James Madison had to promise that when he was elected to Congress, assuming he would be elected to Congress, that he would propose a Bill of Rights. And he accepted input from people from all across what would become the United States of America under the Constitution, about what sorts of amendments should be incorporated into a Bill of Rights. And he took all of these suggestions, distilled them down into 12 different ideas, 10 of which were passed and which we now consider the Bill of Rights.
O'BRIENOne of the things that I think is amazing for us to imagine is James Madison telling his colleagues and the voters, this is what I'm going to promise to do for you and everyone accepted him at his word and then he followed through and was successful in creating a wonderful set of 10 amendments to our Constitution.
REHMNow, where was George Washington in all of this?
QUINNWell, after the Constitutional Convention, Washington went home to Mount Vernon. And he recognized that he was the likely first president and therefore, felt it would be completely improper for him to advocate the Constitution publicly because it would look like he was promoting himself as president. So he took a behind the scenes role and stayed at home at Mount Vernon very carefully, but it was known what his views were and without question, his contemporaries felt that it was Washington's known support of the Constitution -- he signed it on September 17 -- that helped carry the day.
REHMAnd where was Jefferson throughout all this, Sean?
O'BRIENThomas Jefferson was in France and John Adams was in England. And so even though people give them a lot of credit for helping to found the nation, and of course they did, they were not part of the debates around the Constitution.
REHMWho wrote the actual documents?
O'BRIENGouverneur Morris appears to be the person who wrote most of the language that we now recognize as the Constitution, which is actually a really fortunate thing. James Madison had wonderful ideas and was very thorough in expressing them, but his writing is a bit more dense, even, than Gouverneur Morris and so Gouverneur Morris, who led the Committee of Style at the Constitutional Convention, is responsible for most of the language we see, the wonderful phrases like, We the People, those come from Gouverneur Morris.
REHMHow many people in all are we talking about who attended this Constitutional Convention?
QUINNDiane, it was kind of a shifting number. You had delegates come and go. On the 17 of September, there were 40 individuals who signed the Constitution. I think the number of delegates at one point was as high as 57 to 60.
O'BRIENYeah, that's right.
QUINNStuart, do you know (unintelligible) ?
TAYLORI don't know. I defer to you on that (laugh).
REHMAnd I'm also wondering what the attitude of the population was, knowing that this document was under construction. Surely the word had gone out and there must've been people who said, well, you know, why do we need this and what do we want this for?
O'BRIENWell, actually, they did a pretty good job of keeping their deliberations entirely confidential. That was one of the rules they established at the beginning of the convention and Washington enforced it, so it really was a matter of discovering what had been crafted at the convention after the convention. And it immediately created huge political splits across the nation. This is the origin of anti-federalists and federalists. The federalists really understood that there was a need for a union. The anti-federalists felt that the small states were the best sovereign, the best environment for democracy to thrive.
REHMSo this protest against big government goes right back to the founding fathers?
TAYLORIt sure does. The Articles of Confederation, the problem was the lack of big government. That was the problem that a lot of people saw, including the people at the Constitutional Convention, but of course, some others outside the convention thought the problem was bringing on big government. I might add, the secrecy is interesting. One has to wonder whether if we had public meeting laws and a Freedom of Information Act back then, whether they would've ever gotten the thing adopted or gotten it drafted, for that matter.
REHMDo you agree?
QUINNI agree with that. And Madison and the other delegates understood that -- Madison even wrote that the reason they met in secret is so that each delegate could express their views honestly without fear of repercussions from public or their constituents.
TAYLORAnd the secrecy extended until their death. They were not supposed to talk about what happened behind the scenes even after the convention was over. And somewhat miraculously, that actually happened right up until James Madison, who ended up being the last of the signers of the Constitution to pass away, he was collating and putting together his notes from the convention, which were to be published posthumously upon his death. And that's what happened and that's why we know so much about what happened behind the scenes, but it wasn't talked about at all during their lifetimes. Little pieces came out here and there and other delegates wrote some small amounts of notes about what happened, but the details were not available until after 1836.
REHMSecrecy that could not possibly be kept today.
O'BRIENNot a chance. Not...
REHMNot at chance.
O'BRIEN...not as a matter of law or as -- certainly as a matter of political culture.
REHMOr as a matter of the internet and the kind of...
REHM...communication that exists.
O'BRIENNow, I think one point worth emphasizing that was mentioned earlier, one thing that the public was fairly broad -- had a consensus on was great respect for General George Washington. And I think the fact that he was seen as -- and I think one of you mentioned this, was seen as a pro-Constitution, gave it a lot of momentum that might not have otherwise had with public opinion. I'm not sure there's any figure today who would command that kind of confidence to bring the country together behind a new plan.
TAYLORThe confidence in Washington was such that people were actually proposing that, you know, he could just be elected president and stay president for the rest of his life, not unlike a king. That's how respected he was.
REHMBut Sean, as you conducted your survey, I presume you asked people to identify themselves as either Democrats or Republicans?
O'BRIENYes, we did.
REHMAnd what kinds of differences did you see in regard to their thinking about the Constitution?
O'BRIENI think there's three questions in the survey in particular that talk about the differences between different demographic groups, in particular Democrats and Republicans. We asked if the Constitution limits the power of government, the sort of idea of limited government that we talk about quite openly now. And 45 percent of Democrats said that yes, the Constitution limits government power, but only 29 percent of Republicans felt the government power is limited by the Constitution. We also asked the question does the Constitution empower the government to work for the common good. And that's sort of the idea of general welfare of the nation. And 62 percent of Democrats say the Constitution empowers the government to work for the common good and only 37 percent of Republicans believe the Constitution empowers the government to act for the common good.
REHMThat's fascinating. Stuart.
TAYLORIt is and I'm not quite sure how to interpret it, whether it reveals the level of discontent among Republicans with the Constitution, for example, or whether it's more a matter of what they think it ought to do. No, it shouldn't be a mandate to the federal government to work for the public good. I'm not sure what -- how to interpret those answers (unintelligible).
O'BRIENThe way I see it -- sorry, Stuart, is Republicans don't believe the Constitution is limiting government becomes government has become so large in the modern era, but they also don't believe that it should act for the common good. Whereas the Democrats feel like the Constitution is limiting government and they want government to work for the common good. And so just sort of doing a nutshell version of the political philosophies of the parties, Democrats believe that the government can be a source of solutions and help people and Republicans would say small government is better and people should be, you know, working for themselves and communities should be helping each other.
REHMAnd Michael, to you, what about the responsibilities of citizenship? What did the founders see there?
QUINNWell, the founders understood that citizenships -- citizens, the American people were absolutely responsible for the Republic. Ben Franklin, at the conclusion of the Constitutional Convention, was stopped in the street by a woman who said, Dr. Franklin, what have you created, what are you giving us? And his answer was, a Republic, if you can keep it. They understood that our form of self-government depends absolutely on an engaged, knowledgeable citizenry and absent that, the whole thing fails.
REHMMichael Quinn, he's president of The Montpelier Foundation and you're listening to "The Diane Rehm Show." Stuart Taylor, how was the definition of citizenship amended in 1868 and why is it that some people want that amended again?
QUINNOne of the provisions of the Post-Civil War 14th Amendment, which you referred to, says that every person born in the United States, under the jurisdiction of the United States, I think, is automatically a citizen of the United States and of the state where born. The purpose of this was to make sure that the freed slaves would be citizens. I don't think people were thinking much about immigration at the time. Now, this has become a source of controversy really for the first time in a very long while in recent years because there have been reports of people coming across the Mexican border. For example, women, in order to have their babies in hospitals in the United States, that way the baby's a citizen. Maybe that helps the parents get across the border and people who are exercised about illegal immigration see this as a great abuse and have been talking about trying to either -- to change the 14th Amendment either by legislation, which probably can't be done, or by amendment, which definitely won't be done, in order to take away the automatic citizen -- birthright citizenship, as it's called.
REHMBut why did the founders give the responsibility or the authority for citizenship to the federal government as opposed to the individual states?
QUINNWell, actually, Diane, they really couldn't deal with the concept of citizenship because that meant they were walking straight into the issue of slavery, so the idea of citizenship is not addressed in the original words of the Constitution. In fact, they left it to the states to define citizens. If you were a citizen of a state, you were by definition a citizen of the United States. And it actually was probably an oversight of the original Constitution, but a necessary one, 'cause no political compromise could've been achieved on the issue of slavery at that time.
REHMSo talk about political compromise in the sense that here we are in the year 2010 and the constitutionality of the new healthcare law is going to be examined. Tell us why, Stuart, and what provisions are people looking at there?
TAYLORWell, from the start, there were conservatives who were arguing that the proposed healthcare law's provisions, some of them were unconstitutional and the one that they focused on the most is the so called individual mandate to buy insurance. One of the provisions of the law, which takes effect I think in 2014, says that if you're not covered by an employer-based healthcare plan, you must buy health insurance, your own health insurance meeting government's specifications. And the penalty if you don’t do it is that you pay a fine, which argue -- some would call a tax, especially those who defend it constitutionally.
TAYLORThe attack on this provision, which is a central attack on the healthcare law and 15 plus lawsuits around the country, a couple of which have already been heard in the lower courts, is based on the idea that nothing in the Constitution empowers the federal government to order the citizens of the country to buy any commercial product, period. The power that is cited in favor of this provision by its defenders is the power to regulate interstate commerce. And so the argument gets to be is, if I just sit there and do not buy health insurance, am I engaged in an activity that they can regulate in the name of interstate commerce? Sounds like a stretch, however, the commerce power has been stretched very far for a very long time and I think as a betting man, I would bet -- I wouldn't give you big odds, but I would bet that the Supreme Court is not gonna to strike this down.
REHMInteresting. All right. You've heard it here first from Stuart Taylor. He's a contributing editor to both Newsweek and National Journal. We'll take a short break and when we come back, your calls.
REHMWelcome back. And we'll go right to the phones to Mount Dora, Fla. Good morning, Ross, you're on the air.
ROSSOh, good morning, Diane. I wanna tell you how much I enjoy your show consistently.
ROSSI wanted to point out in this situation that this seemed to be one of those clear examples of a very good cause looking for a problem to justify its existence in that we employ life -- for life judicial experts, whose job is to interpret the Constitution and its history. And because of their position, not even the Congressmen and so on that I had the ability to vote for get a choice or a vote in their opinion and so I don't see that the fact that I haven't read the Constitution recently is a particularly important issue, other than the fact that it -- all democracies need to have educated voters.
REHMWell, now, how would you react if I told you that there are a great many people who think that the Constitution that we have today no longer works and that they'd like to see a new Constitution drawn up?
ROSSWell, I think the idea that the Constitution was drawn in secret may have been absolutely essential at the time. I tend to believe in full transparency. And I think that while we don't -- certainly don't wanna throw out the baby with the bath water, we don't wanna lose the gems and the importance of the Constitution. In protecting all of our rights, we also need to allow the Constitution to be amended, which is why that ability is there.
REHMAll right. Thanks for calling. Sean, how many people do, in fact, believe that the current Constitution serves the needs of the population, how many believe that we need a brand-new Constitution?
O'BRIENRight. So we asked if the Constitution should be changed or if the Constitution still works today and 88 percent of the people said that the Constitution still works today and 12 percent felt that it was time for a new Constitution, which is a nice result. That's a nice affirmation of the Constitution. Until you start to look at that question by various demographic groups, for example, among 18 to 24 year olds, 38 percent say it's time for a new Constitution and among those older than that, basically 35 and up, the numbers drop from 15 percent then down to only 6 percent for people 45 and older. And so that's a fairly alarming statistic about what young people think about the Constitution and what's going on with our government.
REHMAnd the other point of Ross' statement, Michael, it seems to me is why do we need to know what the Constitution says when we have the U.S. Supreme Court to do the understanding for us?
QUINNWell, to begin with, reading the Constitution is how you really understand what the job is of the Supreme Court, of Congress, of the president. And you really -- you will do a much better job communicating with those constituents, at least those you vote for, if you understand their purpose and how they are supposed to operate. And it isn't just the Supreme Court that decides constitutionality. Remember, the Supreme Court responds to court case. Really, every single day, every single time Congress passes a law, they are exploring the meaning of the Constitution and every time the president signs a law, he or she is also engaged in that constitutional interpretation.
REHMDoes The Montpelier Foundation have in mind that the Constitution as such should be taught in every elementary, junior high and high school today?
O'BRIENAbsolutely. And in fact, the Center for the Constitution, what we do is host seminars for people who do just that. We have brought thousands of teachers from all 50 states and actually, people from 30 other countries to Montpelier to study the Constitution so that they can really understand the principles in the Constitution and what the founders were reading, what the founders were writing, so that they can go back to their classrooms and do a better job of teaching about the Constitution.
REHMDo we know how many classrooms pay no attention to the teaching the Constitution today?
O'BRIENWell, most states have the Constitution as part of their civics curriculum. Some states have much more constitutional information. They require students to read parts of the Federalist Papers and a number of other works by, say, Locke or Montesquieu, very deep constitutional information. And some states treat it in a more cursory manner. I can tell you that as part of this survey, we did what's called an oversample of just Virginia in partnership with The Colonial Williamsburg Foundation. And in Virginia, young people do much better than young people as a whole in the country. And Virginia's standards related to the Constitution and the founding period are very, very strong. And of course, I'd like to say the Center for the Constitution has been educating teachers in Virginia for ten years and so we've got a lot of very knowledgeable teachers in Virginia.
REHMHave you had teachers from across...
O'BRIENAll 50 states.
REHM...the country? Okay.
REHMTo Lake Odessa, Mich. Good morning, Bill.
BILLGood morning. Thank you very much, Diane, for taking my call for this wonderful show.
BILLI note in the Constitution in Article one, Section eight, it says, give Congress the power to coin money. One of you -- the two gentleman there today interpreted that as to make money, but it said to coin money and regulate the value thereof and of foreign coins and fix the standard of weights and measures. And also in Section 10, it says, no state shall coin money or make anything but gold and silver a tender in payment of debts. The Constitution never provided our government to print money. The printing of money in this country actually began in 1690 in Massachusetts and Massachusetts was never able to get a handle on it. The other colonies also attempted it and in all cases, it was a failure. Today, we have a $13 trillion national debt, which is in excess of $41,000 for every man, woman and child in this country. You can blame that on our government's denial of accepting its constitutional responsibilities and printing money as it sees fit.
QUINNWell, I think that when we conducted our survey, we did not use the term coin money because it's kind of an 18th century term and it encompassed the concept of making -- printing money. And certainly the whole history of currency in this nation and its regulation has been one that's very contentious, but I think without doubt, the -- and this might be where you get to the whole concept of the originalist meaning of the Constitution. Clearly over the centuries, the understanding of Congress, the intent of Congress and our nation has been that it is -- money is a means of facilitating trade and it's not tied strictly to the concept of creating coins made of gold.
REHMAll right. Here's an e-mail from Susan in Alexandria. She says, "I'm astonished at your outright snubbing of the role of George Mason as the father of the Bill of Rights. He was one of the most respected statesmen of the day, instrumental in writing provisions of the Bill of Rights into the Virginia Constitution, which he then offered for inclusion in the national Constitution. When the provisions of the Bill of Rights are the most argued over today and probably the only provisions of the Constitution most people recognize. What a snub by your panelist to ignore the role that this great patriot played in fathering our most cherished rights."
O'BRIENSusan is absolutely right. George Mason was absolutely instrumental in creating the Bill of Rights. And earlier in American history, in 1776, when he was working in Virginia and, of course, James Madison was providing him a little back up there on his work with the Virginia Declaration of Rights. George Mason, George Washington, James Madison, Thomas Jefferson, James Monroe, all of these people were absolutely critical to the success of the founding of our great experiment in democracy here in the United States.
REHMHere's an e-mail from Columbia Heights, "Apart from the originalism question, can you please comment on the currently en vogue interpretations that the Constitution precludes intervention by the government, federal or state, in the economy?" This goes back to the healthcare question. And during the break, Stuart, you and Sean had a difference of opinion on that.
TAYLORYes. Well, I'll let Sean clarify that, but in terms of government intervention and the economy, the power to regulate interstate commerce is government intervention in the economy. The taxing power, in particular the income tax, which was imported by a constitutional amendment late in the 19th century or early 20th century, was it? Those are forms of intervention in the economy. So there was never, I think, an idea that the federal government or the state governments for that matter, could not intervene in the economy. There are debates about how far they can intervene in the economy.
REHMAnd on the healthcare bill?
O'BRIENWell, the question of whether or not the Congress can require people to buy something, in 1792, Congress passed the Militia Act which was signed by George Washington. And the Militia Act explicitly required adult white male citizens between the ages of 18 and 45 to provide himself with a good musket or fire lock with sufficient bayonet and bell, two spare flints and a knapsack, et cetera, et cetera, essentially required hail and healthy white men to buy a gun in order to help defend the country.
REHMNow, you've brought us to the Second Amendment. And I wonder if someone will expound on the pros and cons of that. Michael Quinn?
QUINNWell, if you look at the Supreme Court case over the right to bear arms, you'll find a number of briefs filed and one of them, by a scholar at Stanford University, was the lead scholar, Jake Rakove, trying to present to the Court some of the thinking deduced from Madison's notes, the debates in Congress over the Second Amendment. And you had different points of view as to whether the right to bear arms was linked exclusively to the importance of a militia or not. I think the bottom line is that the Supreme Court has made a decision and that really is the way we should view the Constitution now.
TAYLOROne thing that fascinated me about that decision -- there have now been a second decision this year extending it to the state governments. Originally, it was the District of Columbia and the federal government that were bound by a right to bear arms in self-defense. Is that unlike most cases, all nine members of the Supreme Court said, this is a matter of figuring out what the original intent was because there were no precedents. There hadn't -- there was no clear precedent for this. There wasn't anything to look to. And five of them thought it was clear that the original intent to the framers of the Constitution was to create a right to have guns for self-defense and four of them thought not. And I read their long and learned opinions, both ways, over and over again and I thought it was kind of a toss up as to which group was right. It was interesting that something as simple as that can be the subject of so much learned disagreement.
REHMStuart Taylor, Newsweek and National Journal, contributing editor. And you're listening to "The Diane Rehm Show." Here's an e-mail from Meshon, who says, "Every time I read the Constitution, I come away wondering where the idea came that it designed three co-equal branches of government. Seems to me, Congress has all the power. It can lay and collect taxes, regulate commerce between states, declare war, print money. Seems like our founders vested Congress with the majority of the most important powers." Michael Quinn?
QUINNWell, actually, Madison had a great deal of concern about Congress having too much power. He had seen that flaw in the state constitutions that had been formed at the outset of the revolution and he fought -- and he worked very hard to find ways to balance power among the different branches. He was a strong advocate of a very -- of a fairly independent president. And in fact, he advocated either direct election of the president or the electoral college. What he wanted to get away from is the system that most states were using that the president -- the governor of the state was elected directly by the legislative body. He realized that made the president a puppet of Congress. And he was -- his sense was that it is power you are balancing. It's not a static structure and so he felt that they had put in measures that really did separate and balance the powers, at the same time making them interdependent.
REHMStuart, does the Constitution as written all those many years ago still serve this population?
TAYLORI think it does. I think that we'd be in bigger trouble than we are now if we suddenly tore it up and decided to start over. I doubt we could come up with something that works as well. That said, there are definitely flaws in the original Constitution, what I would call flaws, that are not likely to be worked. The Great Compromise that made the adoption of the Constitution possible, which was that there would be a House of Representatives apportioned by a population and two senators for each state. Well, one result now is that the senator -- the two senators from Utah have the same power as the two senators from California, which has about 40 times as many people. That's a flaw, I think.
REHMAnd I see the flaw in this program as that it has been way too short. I think we will do a series of programs on the Constitution trying to better understand what the founders intended and how that document is being understood now. Thank you, gentlemen, for being here to begin the discussion. Michael Quinn, president at The Montpelier Foundation, Sean O'Brien, he's executive director of the Center for the Constitution at James Madison's Montpelier and Stuart Taylor, he's contributing editor at Newsweek and National Journal. He's the co-author of "Until Proven Innocent."
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